Most clients want complete certainty and a ‘final deal so I can move on with my life’ when it comes to resolving the matter, especially when it comes to finalising financial separation matters.
Under Section 81 of the Family Law Act 1975 (Cth) (‘the Act’), the Court has a duty to make orders that as far as practicable, will “finally determine the financial relationships”. This is commonly known as the “clean break” principle, and it is an attempt by the Court to ensure that the parties are no longer financially reliant on each other and to attempt to stop any further litigation between them with regard to financial matters.
There’s always a risk though that the ‘final’ agreement isn’t the right agreement. What if, for example, there’s a change of circumstances and you cannot comply with the orders? Or you find out your ex had hidden assets? Or trying to comply with the orders is going to cause you significant financial hardship? In these situations, having orders as “final” may be problematic. With this in mind, Section 79A of the Act gives the Court the power, in their discretion, to potentially ‘set aside’ or vary financial orders.
Note that Section 79A only applies to financial orders, NOT parenting orders.
What is Section 79A?
Section 79A provides the circumstances by which a Court may set aside or vary existing financial orders. The scope of this section is quite limited, a matter of changing your mind will not be enough to have an order set aside. There must be evidence of:
- Miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
- Where circumstances have arisen since the order was made whereby it is impracticable for the order to be carried out;
- Where a person has defaulted in carrying out an obligation imposed upon him or her by the order;
- Where, in exception circumstances, the applicant will suffer hardship if the court does not vary or set aside the order; or
- Proceeds of crime order has been made covering property of the parties.
Section 79A applications can be made by any party affected by an order of the Court, and is usually done as a result of a disagreement, if both parties are affected and wish to change the orders they may also make an application to vary or set aside orders by agreement, also known as consent.
Will a Section 79A be Easy?
Section 79A matters are legal complex (both as an applicant or a respondent – we represent both). If you are considering making one of these applications, you should strongly consider seeking legal advice. At Carter Dickens Lawyers we have experience and knowledge with regard to Section 79A applications.
Contact our Office on (08) 9408 5212 to arrange an initial appointment to discuss the merits of your case with one of our lawyers.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.